A Fish Story

http://ow.ly/7WxjR

An article by Craig Ball, Esq. on his blog Ball in Your Court.

This article discusses the recent push to revise the Federal Rules of Civil Procedure based on claims that preservation requirements are too costly and burdensome.  The author argues that those who are complaining, are simply not trying to find the right solutions on how to effectively preserve electronically stored information. The author equates current preservation efforts as trying to use dynamite to go fishing.

The article states, "Instead of learning to fish in a reasonable way—that is, learning to preserve electronic evidence in a measured, cost-effective fashion–the proponents of legislation ask Congress to ban fishing.

They justify their agenda on the false premise that diligent litigants taking reasonable steps to preserve data are being sanctioned. It’s a fish story. When you read the reported decisions, it’s clear that sanctions are being imposed only for disgraceful, often intentional, destruction of evidence. Those claiming the incidence of discovery sanctions is twice what it was a year ago are telling the arithmetic truth. What they don’t let on is that two times almost nothing is still almost nothing. Fact: The chance of being sanctioned for failure to preserve remains smaller than the chance of being struck by lightning."


As Mr. Ball wisely states, "Until lawyers can competently and confidently advise, “Keep this, but don’t worry about that,” preservation will be dynamite fishing. Congress cannot legislate competence, but it can refrain from taking steps to protect incompetence. Limiting sanctions for failing to preserve electronic evidence would give safe harbor to incompetence and hamper efforts to sensibly balance the need for electronic evidence against the cost to preserve it."